The 5 Employment Law Mistakes HR Leaders Make Before Calling Counsel
Employment law problems often become more difficult when counsel is brought in too late. Casandra Lanton examines five common mistakes HR leaders make when handling employee discipline, documentation, workplace complaints and other sensitive employment decisions, and explains when an early conversation with counsel can help reduce legal risk.
HR leaders deal with difficult workplace issues every day. Most of the time, those issues can be handled internally through good judgment, clear policies, and consistent management.
The challenge is knowing when an ordinary HR matter has become a legal one.
Many employment disputes become harder to manage because counsel is brought in only after the company has already taken action, created an inconsistent record, or allowed a problem to escalate.
Here are five common mistakes HR leaders should watch for.
1. Waiting until after the decision has already been made
One of the most common problems is bringing counsel into the process only after the company has decided to terminate, discipline, restructure, or deny a request.
At that point, the legal review can become much more difficult.
If the employee recently complained about discrimination, requested leave, sought an accommodation, raised a wage concern, or engaged in another protected activity, the timing of the employer’s decision may matter just as much as the underlying reason.
The goal is not to have lawyers approve every employment decision. It is to recognize the situations where a short legal review before the decision can prevent a much larger problem afterward.
Better approach: Identify high-risk decisions early and involve counsel before the final decision is communicated.
2. Trying to fix weak documentation after a problem develops
Documentation matters, but timing matters too.
When an employee file shows months of positive feedback followed by a sudden burst of negative documentation immediately before termination, that record may raise questions rather than answer them.
The same problem can arise when managers fail to document performance concerns, inconsistent attendance, policy violations, or prior coaching.
HR should not create a record simply because litigation is suddenly a possibility.
Better approach: Encourage managers to document performance and conduct issues consistently, contemporaneously, and before a dispute develops.
3. Treating similar situations differently without documenting why
Different employees can receive different outcomes for legitimate reasons.
Problems arise when the company cannot explain those differences.
If one employee receives coaching for conduct that leads to another employee’s termination, HR should understand what distinguishes the two situations. Differences in severity, prior discipline, job responsibilities, or other circumstances may justify different treatment.
The important point is that the company should be able to identify and explain those differences.
Better approach: Before significant discipline or termination, compare the situation with similar prior cases and document the reason for any different outcome.
4. Assuming an HR issue is not legal because no one has used legal language
Employees do not always say, “I am requesting a reasonable accommodation,” “I am making a protected complaint,” or “I believe this violates wage-and-hour law.”
Instead, HR may hear:
“I’m having trouble meeting this schedule because of my medical treatment.”
“My manager keeps treating me differently after I complained.”
“I don’t think I’m being paid for all the time I’m working.”
“I need some time away to deal with a family medical issue.”
Those statements may trigger legal obligations even when the employee never cites a statute or uses the language HR expects.
Better approach: Train HR and managers to recognize the substance of a concern, not simply the words the employee uses.
5. Calling counsel only when the situation becomes adversarial
Many employers wait until they receive a demand letter, agency charge, lawsuit, or attorney correspondence before involving employment counsel.
By then, the company may have fewer options.
Employment counsel can often be most useful earlier, when HR is deciding how to conduct an investigation, respond to an accommodation request, structure a separation, review a policy, or address a difficult employee-relations issue.
A short conversation before action is taken can sometimes prevent months of dispute afterward.
Better approach: Think of employment counsel as a resource for difficult decisions, not simply as a response to litigation.
When Should HR Pick Up the Phone?
Consider involving employment counsel before acting when:
termination follows closely after a complaint or protected activity;
an employee has requested leave or an accommodation;
discrimination, harassment, retaliation, or wage issues have been raised;
an internal investigation involves senior leadership;
the company is considering a reduction in force or restructuring;
compensation, commissions, bonuses, or equity are disputed;
an employee has an employment agreement;
the company operates across multiple states;
the facts are unusual or the HR team is uncomfortable with the risk.
Not every HR problem needs a lawyer.
Knowing which ones do is part of effective risk management.
A five-minute call before a decision can sometimes prevent a five-month dispute after it.
About Lanton, Lanton & Sosa Law PLLC
Lanton, Lanton & Sosa Law PLLC advises employers on employment law, workplace compliance, employee relations, investigations, policies, and other legal issues that arise throughout the employment lifecycle. The firm works with businesses and organizations on both routine workforce matters and higher-risk employment decisions.
This publication is provided for general informational purposes only and does not constitute legal advice. Employment laws vary by jurisdiction and circumstances. Employers should consult counsel regarding specific employment decisions.